The Impact of Legal Mobilization and Judicial Decisions: The Case of Official Minority-Language Education Policy in Canada for Francophones outside Quebec

Riddell, Troy Q., Law & Society Review

The article investigates the impact of legal mohilization and judicial decisions on official minority-language education (OMLE) policy in the Canadian provinces outside Quebec, using the "factor-oriented" and "dispute-centered" theories of judicial impact developed by U.S. scholars. The Canadian Supreme Court's decision in Mahé v. Alberta (1990), which broadly interpreted Section 23 of the Charter of Rights to include management and control of OMLE programs and schools, along with federal funding to the provinces to implement OMLE policy, are important to explaining OMLE policy change as predicted by the factor-oriented approach. The dispute-centered approach, on the other hand, helps us understand how the Charter of Rights and judicial decisions shaped the goals and discourse of Francophone groups in the policy process and, more instrumentally, provided opportunity structures that Francophone groups exploited effectively. The article concludes that both approaches to explaining judicial impact could be accommodated within an institutional model of judicial impact that construes institutions as state actors, as sets of rules, and as frameworks of meaning and interpretation. Such an approach would allow for the development of a more comparative model of judicial impact.

This article investigates the impact of legal mobilization and judicial decisions on official minority-language education (OMLE) policy in Canada (outside Quebec). This policy area is bound up with broader questions of constitutional accommodation between French- and English-speakers in Canada and "has produced some of the most emotional and politically charged conflicts in Canadian history" (Apps 1985:45).1 A 1991 study of Canadian interest group activists and academics in the education policy field revealed that Mahé v. Alberta (1990)-a Canadian Supreme Court decision that granted management and control rights over education to official minority-language groups-was considered the most important Canadian Charter of Rights judgment delivered by the court since the Charter of Rights was added to Canada's constitution in 1982 (Dolmage 1991). However, a 1992 report by the Official Languages Commissioner complained about the slow and contested implementation of OMLE rights enshrined in Section 23 of the Charter after the Supreme Court's Mahé ruling (Commissioner of Official Languages 1993:18). Does the slow acceptance of the Mahé decision affirm Rosenberg's (1991) assertion that pursuing social change through the courts represents a "hollow hope" for politically disadvantaged groups? Or do we need a different model to understand judicial impact?

Surprisingly, given the extensive literature that has developed on the Charter since its entrenchment in Canada's constitution in 1982, there have been only limited and sporadic attempts to describe or explain the effects of legal mobilization and judicial decisions under the Charter. There is certainly no judicial impact literature in Canada equivalent to that in the United States. This article, therefore, draws upon the two dominant approaches to understanding judicial impact that have been developed in the U.S. literature to help explain the impact of judicial decisions on OMLE outside Quebec: the "bottom-up," "dispute-centered" approach and the "top-down," "factor-oriented" approach.

The first part of the article presents an overview of these two approaches to predict and explain judicial impact, approaches that have been used to understand school desegregation policy in the United States. School desegregation policy, like OMLE policy in Canada, has involved questions of where and how minorities are educated and implicated broader questions of constitutional accommodation (Apps 1985; Manfredi 1993; Magnet 1995). The Canadian case is simply the mirror image of the American one, where Francophone proponents of policy change are arguing for "separate but equal" educational facilities and administrative structures rather than integrated ones. …

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